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Drake’s transformation prevails in plagiarism claim

Drake, along with his record labels and music publishers, have won a difficult lawsuit that had claimed his song “Pound Cake/Paris Morton Music 2” which featured on the 2013 album “Nothing Was the Same” sampled a 1982 spoken-word recording titled the “Jimmy Smith Rap.”

The use complained of is where Deake used a cut down version of lyrics spoken by jazz musician James Oscar Smith which originally read “Jazz is the only real music that’s gonna last ….. All that other bulls**t is here today and gone tomorrow. But jazz was, is and always will be.” Drake’s version is “Only real music’s gonna last …. All that other bulls**t is here today and gone tomorrow.”

Drake’s record label engaged a music licensing company to obtain all necessary licenses. They obtained a license for the use of the sound recording of “Jimmy Smith Rap” but clearing the composition became problematic. The Estate maintained it would not have granted a license for the composition because JSmith “wasn’t a fan of hip hop.”

District Court judge William H. Pauley III has now isssued a summary judgment for the defendants and against the Estate of James Oscar Smith, and found that there is no liability for copyright infringement. Judge Pauley found that the key phrase in Smith’s song “is an unequivocal statement on the primacy of jazz over all other forms of popular music” and that Drake’s use (by contrast) “transforms Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that ‘real music’ with no qualifiers, is ‘the only thing that’s gonna last.’” Thus the judge adds, the purpose is “sharply different” from the original artist’s and is transformative, and “This is precisely the type of use that ‘adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message”.

Judge Pauley also noted that whilst in many cases of parody the average observer would need to identify the target of derision, it’s not a universal prerequisite for a finding of transformative use, commenting that Drake used Smith’s work as “raw material” for new work. The judge also comments that the use of “Jimmy Smith Rap” was transformative regardless of whether the average listener would identify the source and comprehend Drake’s purpose.